CLIFFORD CLARK, JR. V. THE LEVINSON STEEL COMPANY; HON. ROBERT L. WHITTAKER, ACTING DIRECTOR OF SPECIAL FUND; HON. ZARING P. ROBERTSON, ADMINISTRATIVE
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RENDERED: October 2, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-003035-WC
CLIFFORD CLARK, JR.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-26543
THE LEVINSON STEEL COMPANY;
HON. ROBERT L. WHITTAKER,
ACTING DIRECTOR OF SPECIAL
FUND; HON. ZARING P.
ROBERTSON, ADMINISTRATIVE
APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: GUIDUGLI, JOHNSON and KNOPF, Judges.
JOHNSON, JUDGE:
Clifford Clark, Jr. (Clark), petitions for
review of an opinion of the Workers’ Compensation Board (Board)
rendered on October 24, 1997, which affirmed the opinion and
award on remand of Hon. Zaring P. Robertson, Administrative Law
Judge (ALJ).
Specifically, Clark asserts that both the Board and
the ALJ erred in determining that the majority of Clark’s “wear
and tear” knee injury claim was time barred under Kentucky
Revised Statutes (KRS) 342.185 and Randall Company/Randall
Division of Textron, Inc. v. Pendland, Ky. App., 770 S.W.2d 687
(1989).
Having concluded that the Board erred as a matter of
law, we reverse and remand for reinstatement of the ALJ’s
original award.
Clark’s injury claim arose from his employment as a
truck driver and warehouse worker for The Levinson Steel Company
(Levinson).1
Clark claimed that he suffered numerous mini-trauma
injuries to his knees during the twenty-four years that he
performed heavy manual labor while working for Levinson.
Clark
testified that he had experienced pain in his knees for many
years and medical evidence showed that Clark suffered from severe
degenerative arthritis in his right knee and he had a total
replacement of his left knee.
The medical history related to Clark’s knees is
somewhat confusing.
Clark slipped in oil and fell in 1985 and
injured his right knee.
Following this accident, he saw a doctor
for the first time concerning both of his knees.
In April 1987,
Clark underwent arthroscopic surgery to his left knee, at which
time significant osteoarthritic changes were noted.
underwent surgery to his right knee in June 1987.
He also
Following this
surgery, Clark returned to work for Levinson without any
Clark originally filed claims for injuries to his right
shoulder, lower back, and both knees. This appeal concerns
only the claim for Clark’s knee injuries.
1
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restrictions.
Clark testified that his knees began to hurt again
soon after returning to work in 1987, and continued to gradually
worsen until he left work on July 27, 1994, and underwent total
replacement surgery on his left knee.
He has not returned to
work.
On July 3, 1995, Clark filed his workers’ compensation
claim alleging “wear and tear” injuries to both knees.
Citing
KRS 342.185 and Pendland, supra, Levinson asserted that the claim
was time barred because Clark’s disability had become manifest
more than two years before Clark filed his claim.
“[I]n cases
where the injury is the result of many mini-traumas, . . . the
date for clocking a statute of limitations begins when the
disabling reality of the injuries becomes manifest.”
Id. at 688.
Levinson alleged that Clark’s disability had become manifest in
1987 when he underwent surgery to both knees.
Clark argued that
the disability did not become manifest until his last day of work
on July 27, 1994.
Following a hearing, the ALJ rejected Levinson’s
statute of limitations argument that Clark’s injury became
manifest following the 1987 surgeries.2
Rather, the ALJ
concluded that the 1987 surgery [surgeries] was the result of a
separate, single traumatic event, slipping in oil and falling in
1985, and that because the accident occurred more than two years
before the claim was filed, compensation for disability arising
2
The ALJ referred to a singular surgery, but in fact,
there were two separate knee surgeries in 1987.
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from the 1985 accident was time barred.
The ALJ assessed Clark
with a prior active disability from the 1985 accident of 30% that
was noncompensable and should be carved out of his award.
The
ALJ also determined that Clark had established a subsequent,
cumulative trauma injury to his knees which did not become
manifest until July 27, 1994, Clark’s last day of work.
The ALJ
awarded Clark a 75% occupational disability as a result of
injuries to both of his knees, with 30% being carved out as prior
active disability.
The remaining 45% compensable award was
apportioned 50/50 between the employer and the Special Fund.
Levinson appealed the ALJ’s decision to the Board which
reversed and remanded the case to the ALJ because “[a] party is
entitled to have his claim decided upon the basis of correct
findings of basic facts.
Cook v. Paducah Recapping Service, Ky.,
694 S.W.2d 684, at 689 (1985).”
Specifically, the Board stated
that there was no evidence to support the ALJ’s determination
that Clark’s 1987 surgeries on both knees was related to the 1985
accident that had injured his right knee only.
On remand, the ALJ acknowledged that he had “overlooked
or confused relevant facts” relating to Clark’s 1985 fall and
subsequent 1987 surgeries, and determined that Clark’s 1987
surgeries were not the result of a single traumatic event.
ALJ then stated as follows:
This Administrative Law Judge concludes
that the evidence establishes that the
plaintiff’s work activities as a truck driver
for the defendant-employer since 1970
resulted in a cumulative, progressive injury
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The
to his knees. As argued by the defendantemployer, disability from this cumulative
trauma first manifested in 1987, when the
plaintiff underwent bilateral surgeries. To
the extent that the plaintiff became disabled
at that time, his claim for such is timebarred.
However, the plaintiff returned to work
with some degree of active disability, but
continued to experience further trauma, to
and including July 27, 1994. This
Administrative Law Judge finds from the
evidence that the plaintiff’s disability
progressively increased over this period of
time. Thus, each continuing “mini-trauma”
effectively constituted a separate injury to
the plaintiff; causing further disability,
and having a later limitation period. It is
therefore the conclusion of this
Administrative Law Judge that any of the
plaintiff’s disability which can be
attributed to cumulative trauma which
occurred within the two years preceding the
filing of his claim is separately compensable
from the disability which was pre-existing
and active prior to that time. . . . The
plaintiff’s herein claim was filed on July 3,
1995, and the undersigned Administrative Law
Judge concludes that cumulative trauma which
occurred between July 4, 1993, and the
plaintiff’s last day of work, July 27, 1994,
is compensable.
Having already determined the plaintiff
to be 75% occupationally disabled as the
result of his knee condition, it is my
amended conclusion on remand that such
disability is related to the plaintiff’s
entire career with the defendant-employer,
which began on an unspecified date in March
1970. Assuming, for purposes of this award,
that the plaintiff began in the middle of
that month, March 15, 1970, his entire career
spanned 1,266.71 weeks. Of this, the final
55 weeks is within the two year statutory
limitation period. I therefore conclude that
4.34% of the plaintiff’s knee condition is
compensable, and he is entitled to an award
based upon 3.3% disability.
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Clark and the Special Fund appealed the ALJ’s award on
remand to the Board.3
In its opinion affirming the ALJ, the
Board stated as follows:
Although Randall Co. v. Pendland, supra,
stands for the proposition that in cumulative
trauma claims the clocking of the statute of
limitations begins when the disabling reality
of the injury becomes manifest, that case
does not address the question of how to deal
with additional trauma sustained after that
date since in Pendland, the last date of work
was the date disability became manifest, and
the Court therefore was not required to
address additional trauma. In the context of
a cumulative trauma injury, the term injury
actually refers to numerous mini-traumas
which occur over a period of time. It is
dynamic and distinguishable from the
worsening of a workers’ [sic] condition over
time after a single traumatic event. In this
case, the ALJ recognized that and determined
that a portion of the overall injury had
occurred within two years of the date the
claim was filed and had resulted in a portion
of the claimant’s overall occupational
disability. In view of the nature of Clark’s
injury, we are not persuaded that the ALJ’s
approach was incorrect.
In his appeal, Clark contends that the
ALJ’s original finding of a 40 [45] percent
compensable occupational disability should
not have been reduced since he continued to
work and perform his job duties after his
1985 injury until the date his injuries
became disabling in July 1994. He contends
that under Randall v. Pendland, supra, since
Clark continued to work full time with no
restrictions, through June 26, 1994, [sic]
from and after his 1987 surgeries, all
disability that developed after those
surgeries should be compensable since the ALJ
3
The Board held the appeal in abeyance pending a final
decision by our Supreme Court in Spurlin v. Crick (96-SC703-WC, rendered June 19, 1997, not to be published; and 94CA-0716-WC, rendered May 10, 1996, to be published).
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had determined he established a subsequent
gradual injury which under Randall, supra,
did not become disabling until his last day
of work.
However, in reality the ALJ determined
that the evidence established Clark’s work
activities as a truck driver since 1970 had
resulted in a cumulative progressive injury
to his knees for which he had initially
awarded Clark a 40 [45] percent compensable
occupational disability. He, furthermore,
determined on remand that that cumulative
trauma first manifested itself in 1987 when
Clark underwent bilateral knee surgeries, and
to the extent Clark was disabled at that
time, his claim for such disability was time
barred. The ALJ then determined that Clark,
after returning to work with some degree of
active disability attributable to his knee
condition, continued to experience further
trauma up through his last date of work with
each continuing mini-trauma constituting a
separate injury to Clark and his disability
progressively increasing over the period of
time from his knee surgeries until his last
date of work. The ALJ then determined that
the disability attributable to the cumulative
trauma that occurred two years immediately
prior to the filing of his claim was not time
barred and was therefore compensable. In
determining the degree of occupational
disability attributable to that period, the
ALJ apportioned Clark’s disability based upon
his entire career with Levinson with that
disability attributable to the period that
fell within the two years of the filing of
his claim being deemed compensable. That
methodology has been sanctioned as an
appropriate method of determining Special
Fund liability in claims where the disability
is attributable to multiple years of service
involving multiple employers. Southern Ky.
Concrete & Contractors v. Campbell, Ky.App.,
662 S.W.2d 221 (1983); and O.K. Precision
Tool & Die Co. v. Wells, Ky., 678 S.W.2d 397
(1984). In our opinion, it is equally
appropriate for determining the percentage of
disability not time barred in a claim such as
this where the evidences establishes that the
claimant’s disability from cumulative trauma
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progressively increased over the period of
his entire work career, and the disability
first manifested itself more than two years
before the last day of work.
We disagree with the ALJ’s legal conclusion, that was
affirmed by the Board, that since “each continuing ’mini-trauma’
effectively constituted a separate injury to the plaintiff;
causing further disability, and having a later limitation
period[,]” only the “disability which can be attributed to
cumulative trauma which occurred within the two years preceding
the filing of his claim is separately compensable[.]”
This
conclusion is inconsistent with the ALJ’s and Board’s conclusion
that the disability from the earlier cumulative traumas
manifested on one date in 1987, and with the holding in Pendland,
that “where the injury is the result of many mini-traumas, . . .
the date for clocking a statute of limitations begins when the
disabling reality of the injuries becomes manifest.”
at 688.
770 S.W.2d
The ALJ’s and Board’s conclusion that Clark’s continuing
mini-traumas, following the 1987 surgeries, constituted separate
injuries with later limitation dates is contrary to the
definition of a cumulative trauma injury as set out in Pendland,
supra.
Simply stated, the concept of a cumulative injury does
not include separate identifiable injuries.
The ALJ’s and
Board’s conclusion leads to the absurd result that a claimant
suffering subsequent mini-traumas would be forced to file
separate claims for each mini-trauma and the employer would be
forced to defend the separate claims.
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This case involves two separate series of mini-traumas.
Each series had its own individual manifestation date.
After the
first series manifested in 1987, Clark underwent surgery on both
knees and returned to work with a 30% active disability.
Griffin
v. Booth Memorial Hospital, Ky., 467 S.W.2d 789, 790 (1971).
Some seven years later, after many more mini-traumas to both of
his knees, Clark had a second manifestation of an injury to both
knees.
This second injury manifested on July 27, 1994, his last
day of work.
Since his claim for the second injury was filed on
July 3, 1995, it was timely and he is entitled to be compensated
for the second injury which the ALJ has already determined to be
a disability of 45%.
Accordingly, the opinion of the Board is reversed and
this case is remanded to reinstate the ALJ’s 45% disability award
to be apportioned 50/50 between the employer and the Special
Fund.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, LEVINSON:
Hon. Thresa N. Taylor
Madisonville, KY
Hon. W. Russell Duty
Owensboro, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Hon. Benjamin C. Johnson
Louisville, KY
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